628 Park Avenue v. Miller

2026 UT App 113
THE UTAH C OURT OF APPEALS
628 PARK A VENUE LLC,
Appellant,
v.
R OBERT A. M ILLER ,
Appellee.
Opinion
No. 20240378-CA
Filed July 30, 2026
Third District Court, Silver Summit Department
The Honorable Richard E. Mrazik
No. 190500384
Troy L. Booher, LaShel Shaw, Taylor P. Webb, and
Tal S. Madanes, Attorneys for Appellant
Craig A. Hoggan and Matthew M. Kaufmann,
Attorneys for Appellee
JUDGE JOHN D. L UTHY authored this Opinion, in which
JUDGES R YAN M. HARRIS and R YAN D. TENNEY concurred.
LUTHY, Judge:
¶1 	628 Park Avenue LLC (Park Avenue) leased a commercial
property (the Premises) to Church LLC dba Church Public House
(Church), with Robert A. Miller personally guaranteeing Church’s
performance under the lease. After Church failed to pay rent and
other amounts it owed, Park Avenue sued Miller under the
guaranty, attempting to collect Church’s unpaid rent and other
damages from him. Miller moved for summary judgment on—as
relevant here—four issues.
¶2 	First, Miller requested a ruling as a matter of law that
Church had surrendered the Premises to Park Avenue and that
Park Avenue had accepted the surrender. The district court

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granted Miller’s request, ruling as a matter of law that Park
Avenue had accepted a surrender of the Premises, thereby
precluding Park Avenue from claiming damages that accrued
after the date of the surrender and acceptance.
¶3 	Second, Miller asked the court to rule as a matter of law
that the guarantee he signed did not obligate him to pay treble
damages Church might owe under the unlawful detainer statute.
The court granted this request as well.
¶4 	Third, Miller moved for a ruling that Park Avenue had
failed to adequately disclose a computation of its damages and,
thus, that it should be prohibited from presenting evidence of its
damages. On this issue, the court granted Miller’s motion in part
and denied it in part. The court determined that Park Avenue’s
disclosure was adequate as to the damages it claimed for unpaid
rent during the five months preceding its acceptance of Church’s
surrender of the Premises. But the court ruled that Park Avenue’s
disclosure was otherwise inadequate and that Park Avenue was
therefore barred from presenting evidence of other damages.
¶5 	Finally, Miller moved for summary judgment on the basis
that Park Avenue had received payments from Church in excess
of the amount Park Avenue claimed in unpaid rent during the five
months preceding its acceptance of the surrender of the Premises.
The 	court 	granted 	this 	motion, 	ruling 	that 	the 	undisputed
evidence showed that Park Avenue had received payments in
excess of the only damages it was still permitted to pursue and,
thus, that Park Avenue could not maintain a claim against Miller.
The court then dismissed Park Avenue’s action against Miller.
¶6 	Park Avenue appeals. It argues that there remain genuine
disputes of material fact on the issues of surrender and acceptance
and of Miller’s obligation to pay treble damages and, therefore,
that summary judgment was inappropriate on these issues. This
argument is well taken, and we reverse the grant of summary
judgment on these issues. Park Avenue also argues that its

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damages disclosure was adequate and, accordingly, that the
court’s summary judgment rulings related thereto were in error.
We are not persuaded that Park Avenue’s overall damages
disclosure was adequate. Hence, we affirm in part the district
court’s rulings related to Park Avenue’s damages disclosure.
However, 	we 	determine 	that 	certain 	components 	of 	Park
Avenue’s disclosure were adequate. Thus, we reverse in part the
summary judgment related to Park Avenue’s damages disclosure
and hold that to the extent Park Avenue is otherwise permitted to
pursue its claims related to those components of its claimed
damages, 	it 	may 	present 	evidence 	of 	the 	amount 	of 	those
damages. Finally, because we determine that Park Avenue may
present evidence of amounts allegedly owed by Church in
addition 	to 	unpaid 	rent 	during 	the 	five 	months 	preceding
Church’s purported surrender of the Premises, we reverse the
district court’s final summary judgment ruling and ultimate
dismissal of Park Avenue’s action. We remand this case for
further proceedings consistent with this opinion.
BACKGROUND1
The Lease
¶7 	Park Avenue owns the Premises, which are located at 628
Park Avenue in Park City. At the time of the events giving rise to
this case, the Premises had previously “been used as a restaurant
and bar,” and Church desired to lease and use the Premises for
that same purpose. Miller was a “passive investor” in Church and
apparently had no significant involvement in its management.
1. “In reviewing a district court’s grant of summary judgment, we
view the facts and all reasonable inferences drawn therefrom in
the light most favorable to the nonmoving party and recite the
facts accordingly.” M.A. v. Regence BlueCross BlueShield of Utah,
2020 UT App 177, n.1, 479 P.3d 1152 (cleaned up).

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¶8 	In November 2016, Church and Park Avenue entered a
lease agreement (the Lease). Under the Lease, Church agreed to
rent the Premises from November 1, 2016, through October 31,
2021, “or such earlier date on which [the] Lease [might be]
terminated pursuant to any of the terms, conditions or covenants
of [the] Lease or pursuant to law.” The Lease required a security
deposit of $60,000. The minimum annual rent was $360,000 (or
$30,000 per month), together with taxes, an annual inflation
increase, and a portion of Church’s gross annual proceeds over
$3.6 million.
¶9 	The Lease defined the failure to timely pay rent as a breach
and default. If Church defaulted, Park Avenue was entitled to
various remedies, including termination of the Lease “by written
notice.” Section 14.03 of the Lease provided that if Church
breached the Lease or if Park Avenue terminated the Lease for any
breach, or otherwise took action on account of Church’s breach or
default under the Lease, then “in addition to any other remedies”
Park Avenue might have in the event of a breach or default, Park
Avenue could “recover from [Church] all damages incurred by
reason of such breach or default, including all of the following”:
(a) The worth at the time of award of any unpaid
Rent that was due and payable for periods prior to
and at the time of such termination;
(b) The worth at the time of award of the amount by
which the unpaid Rent (other than Percentage Rent)
that would have been earned after termination until
the time of award exceeds the amount of such Rent
loss [Church] proves could have been reasonably
avoided and any savings [Church] proves [Park
Avenue] realized as a result of [Church’s] breach or
default;
(c) The worth at the time of award of the amount by
which the unpaid Rent (other than Percentage Rent)

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for the balance of the Lease Term after the time of
award exceeds the amount of such Rent loss that
[Church] proves could be reasonably avoided and
any 	savings 	[Church] 	proves 	[Park 	Avenue]
realized as a result of [Church’s] breach or default;
(d) Any other amount necessary to compensate
[Park Avenue] for [Church’s] failure to perform its
obligations under [the] Lease, including, without
limitation, any costs or expense incurred by [Park
Avenue] in: (i) retaking possession of the Premises,
including 	reasonable 	attorneys’ 	fees 	therefor;
(ii) maintaining or preserving the Premises after
such 	default; 	(iii) 	preparing 	the 	Premises 	for
reletting to 	a 	new tenant, 	including 	repairs or
alterations to the Premises for such reletting; (iv)
leasing 	commissions; 	and 	(v) 	any 	other 	costs
necessary or appropriate to relet the Premises LESS
any 	savings 	[Church] 	proves 	[Park 	Avenue]
realized as a result of [Church’s] breach or default;
(e) At [Park Avenue’s] election, such other amounts
in addition to or in lieu of the foregoing as may be
permitted from time to time by the laws of the State
where the Premises [are] located.
¶10 	Under the Lease, interest accrued on any past due amounts
at 18% per annum compounded monthly, and Park Avenue was
entitled to recover attorney fees incurred in any successful action
against Church “relating to the provisions of [the] Lease or any
default [there]under beyond any applicable notice and cure
periods.” The Lease also provided that if Church were in default,
“all payments made by [Church] and received by [Park Avenue]”
could 	“be 	applied, 	in 	[Park 	Avenue’s] 	sole 	and 	absolute
discretion, to any outstanding arrearages owed by [Church] to
[Park Avenue], irrespective of any payment characterization
[Church might] designate for any such payment.”

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The Guaranty
¶11 	Prior to execution of the Lease by Church and Park
Avenue, Miller signed a lease guaranty (the Guaranty). By signing
the Guaranty, Miller guaranteed “the payment of . . . any losses,
damages, or liabilities of any kind or nature incurred by [Park
Avenue] as a result of [Church’s] . . . . failure to perform any term,
provision, obligation or requirement of the Lease,” as well as “the
payment of all costs, attorney fees, and other expenses that
[might] be incurred by [Park Avenue] in enforcing” Church’s
performance under the Lease. The Guaranty was included as an
attachment to the Lease.
Church’s Default and the Forbearance Agreement
¶12 	In April and May 2017, Church failed to make timely rent
payments. Park Avenue served Church with a three-day notice to
pay or quit. When Church failed to come current on its rent, Park
Avenue sued for unlawful detainer. Church and Park Avenue
then entered into a forbearance agreement (the Forbearance
Agreement) that was effective June 2, 2017. The Forbearance
Agreement required Park Avenue to refrain from taking further
action in the lawsuit. In return, Church acknowledged that it had
fallen behind on its rent payments, and it agreed to make a series
of monthly installment payments—beginning in June 2017 and
running through July 2018—to cover the amounts the parties
agreed Church owed under the Lease.
¶13 	The Forbearance Agreement stated that the Lease would
“remain in full force and effect” and that “nothing in [the
Forbearance Agreement] replace[d], supersede[d] or cancel[ed]
any term, condition or obligation contained in the Lease.” Under
the Forbearance Agreement, Church agreed that its “failure to
make any single installment payment” would constitute “a breach
of [the] entire” Forbearance Agreement and that upon such a
breach, the total amount of the installment payments would
become due and Park Avenue could continue its suit against

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Church. Section 4(c) of the Forbearance Agreement provided that
if Church failed “to make any single installment payment,” then
the “[t]reble damages described in [Utah Code section] 78B-6-
811(3), including but not limited to treble rent payments and other
payments due under the [Lease], [would] begin to accrue on the
date of any such breach and [would] continue until [Church]
vacate[d] the [P]remises.”
The Return of Possession and the License Agreement
¶14 	In July 2017, Church again failed to pay rent. It also fell
behind 	on 	the 	payments 	it 	owed 	under 	the 	Forbearance
Agreement. 	Accordingly, 	Park 	Avenue 	served 	Church 	with
another three-day notice to pay or quit, and it amended its
complaint to update its unlawful detainer cause of action and add
a claim for breach of the Forbearance Agreement. Church then
also missed its August 2017 rent payment. On August 9, 2017, the
court entered an order of restitution requiring Church to vacate
the Premises within three days.
¶15 	Over 	the 	next 	few 	days, 	Church 	and 	Park 	Avenue
exchanged emails, trying to find a “resolution” agreeable to both
parties. On August 12, 2017, Park Avenue wrote that it was
“amenable” 	to 	“Church 	relinquish[ing] 	possession 	of 	the
[P]remises” but receiving a “license” to use the Premises for
several days in exchange for a cash payment of $35,000. Park
Avenue’s email also discussed the possibility of “reviv[ing] the
[L]ease” and listed some additional terms that would need to be
included in “[t]he revived lease.”
¶16 	Later in the day on August 12, 2017, Church signed a return
of 	possession 	(the 	Return 	of 	Possession), 	under 	which 	it
“COMPLETELY 	RETURN[ED] 	POSSESSION 	OF 	THE
PREMISES” to Park Avenue. The Return of Possession stated that
Church understood that Park Avenue was “not waiv[ing] any
rights or remedies afforded to [Park Avenue] under the Lease . . .
[or] under any applicable Federal, State and/or Local law” and

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that Church’s “return of possession [did] not relieve [Church] of
any outstanding obligations under the Lease.”
¶17 	Also 	on 	August 	12, 	2017, 	Church 	and 	Park 	Avenue
executed 	a temporary 	license 	(the 	License 	Agreement). 	The
License Agreement stated that
• 	as a tenant, Church had “failed to pay rent, was in unlawful
detainer and was evicted from the [Premises]”;
• 	Church 	“expressly 	acknowledge[d], 	admit[ted] 	and
agree[d]” that absent the License Agreement, it had “no
interest in or right to enter or use [the Premises]”;
• 	Church owed Park Avenue “past due payments arising out
of 	a 	forbearance 	agreement, 	the 	terminated 	lease
agreement, and the unlawful detainer action”;
• 	Church 	“desire[d] 	to 	use 	the 	[Premises] 	while 	it
attempt[ed] to raise funds to pay [the] money [it] owed to
[Park Avenue]”;
• 	Park Avenue “refuse[d] to enter a lease agreement with”
Church, and Church “under[stood] and agree[d] that [the
License 	Agreement] 	in 	no 	way 	create[d] 	a 	lease
agreement”;
• 	the License Agreement “in no way alter[ed] or amend[ed]
any obligation owed by [Church] to [Park Avenue] under
the 	previously 	existing 	and 	now 	terminated 	lease
agreement”; and
• 	the 	License 	Agreement 	gave 	Church 	a 	“[l]icense” 	to
continue using the Premises through August 18, 2017, in
exchange for a cash payment of $35,000.

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¶18 	Park Avenue never served Church with written notice
stating that it was terminating the Lease. In a written declaration,
Park Avenue’s manager later stated that Park Avenue “never
intended the Return of Possession . . . or the [License Agreement]
to be a surrender of the Lease” and “never intended to accept the
surrender of the Lease.” He averred that Park Avenue “requested
a return of the Premises only, not a surrender of the [L]ease itself.”
He stated that Park Avenue “thought the [o]rder of [r]estituion
issued on August 9, 2017[,] ordering Church to vacate the
Premises for failure to pay rent terminated the Lease.” He also
said, “[Park Avenue] considered the Lease suspended during the
licensing period and would [have] revive[d] it if Church met its
obligations.”
¶19 	Church was not successful in meeting its obligations to
Park Avenue, and it eventually vacated the Premises. Park
Avenue was thereafter able to rent the Premises for two events,
but the Premises otherwise remained vacant for the remaining
term of the Lease.
Park Avenue’s Lawsuit Against Miller and Damages Disclosure
¶20 	In August 2019, Park Avenue sued Miller, seeking to
enforce the Guaranty and obtain $2,043,978.26 in damages. In its
initial disclosures, Park Avenue provided the following statement
regarding its claimed damages:
[Park Avenue] seeks damages for amounts
due and owing pursuant to the [Guaranty]. [Park
Avenue’s] damages amount of $2,043,978.26 (“[Park
Avenue’s] 	Damages”) 	is 	based 	on 	the 	amount
[Church] 	owes 	[Park 	Avenue] 	arising 	out 	of
[Church’s] repeated failure to pay rent.
[Park Avenue’s] Damages amount consists of
unpaid 	rent, 	statutory 	damages 	for 	unlawful

628 Park Avenue, LLC v. Miller
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detainer, 	and 	breach 	of 	contract 	damages 	plus
interest, attorney fees, and court costs.
[Park 	Avenue’s] 	Damages 	amount 	was
computed pursuant to Section 14.03 of the [Lease],
pursuant 	to 	the 	[F]orbearance 	[A]greement
(including Section 4(c)) . . . , and pursuant to [Utah
Code section] 78B-6-811(3).
A 	copy 	of 	[Park 	Avenue’s 	amended
complaint 	against 	Church] 	with 	all 	damages
claimed by [Park Avenue] against [Church], the
[Lease], the [F]orbearance [A]greement, and the
[Guaranty] are all attached hereto. As for additional
amounts, 	[Park 	Avenue] 	reserves 	the 	right 	to
supplement 	this 	disclosure 	as 	additional
information becomes known.
As it indicated, Park Avenue attached to its initial disclosures a
copy of its amended complaint against Church, the Lease, the
Guaranty, and the Forbearance Agreement.
¶21 	Park Avenue’s amended complaint against Church had
sought unlawful detainer damages for breach of the Lease as
follows:
a. Except for May . . . 2017 and June . . . 2017 rent,
any rent due and unpaid by [Church] through the
end of the [Lease], including any fees, rent payment,
and additional rent that comes due while [Church]
remains in unlawful detainer (such as August . . .
2017 rent);
b. damages caused because [Church] remained in
possession of [the Premises];

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c. physical damages beyond normal wear and tear
(waste) caused by [Church] to [the Premises] during
the 	time 	[Church 	was] 	in 	possession 	of 	the
[Premises]; and
d. damages for the abatement (termination) of any
nuisance caused by [Church] as provided in [Utah
Code sections] 78B-6-1107 through 1114.
Park Avenue’s amended complaint against Church had also
sought attorney fees, costs, and “treble damages in accordance
with [Utah Code section] 78B-6-811 at the rate of $3,000 for each
day [Church] remained in unlawful detainer prior to executing
the Forbearance Agreement, beginning on May 15, 2017[,] until
June 2, 2017, and for each day [Church] remain[ed] in unlawful
detainer, beginning on July 13, 2017.”
¶22 	As 	for 	its 	claim 	against 	Church 	for 	breach 	of 	the
Forbearance 	Agreement, 	Park 	Avenue’s 	amended 	complaint
against Church had alleged that $73,354.91 was due under the
Forbearance Agreement as of July 3, 2017; that on July 13, 2017,
Church made a payment of $33,267.48; that on July 14, 2017,
Church made a payment of $4,604.52; and, thus, that “$35,482.91
remain[ed] due and owing” under the Forbearance Agreement.
Accordingly, for breach of the Forbearance Agreement, Park
Avenue’s 	amended 	complaint 	against 	Church 	had 	sought
damages of $35,482.91. It had also sought—for breach of the
Forbearance Agreement—attorney fees, costs, and treble damages
under Section 4(c) of the Forbearance Agreement and section 78B-
6-811(3) of the Utah Code “in the amount of $3,000 for each day
[Church] remain[ed] in possession of the [P]remises beginning
July 4, 2017.”
¶23 	In sum, Park Avenue’s initial disclosures in its lawsuit
against Miller—the case from which this appeal arises—indicated
that Park Avenue sought from Miller all of the damages Park
Avenue had claimed in its earlier lawsuit against Church.

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Miller’s Summary Judgment Motions
¶24 	Following discovery in this case, Miller filed a motion for
summary judgment, asking the court to rule as a matter of law
that (1) Park Avenue accepted a surrender of the Premises on
August 12, 2017, and was thus “barred from recovering any
amount that was not already due by” that date; (2) “Miller did not
agree to pay treble damages under Utah’s unlawful detainer
statute,” so Park Avenue’s “damage claims against Miller based
on unlawful detainer fail[ed]”; and (3) Park Avenue did not
comply with its “obligation to provide a damages computation”
under rule 26(a)(1)(C) of the Utah Rules of Civil Procedure and
should therefore be precluded from offering evidence of its
damages.
¶25 	The district court granted Miller’s motion in part and
denied it in part. First, the court ruled as a matter of law that Park
Avenue accepted a surrender of the Premises on August 12, 2017,
and that to the extent Park Avenue sought damages that accrued
after 	that 	date, 	Park 	Avenue’s 	claim 	was 	dismissed 	with
prejudice. In support of this ruling, the court pointed to the Return
of Possession generally and the following specific statements in
the License Agreement:
• 	“[Church] owes [Park Avenue] past due payments arising
out of . . . the terminated lease agreement,”
• 	“[Park Avenue] refuses to enter a lease agreement with
[Church],”
• 	“[Church] 	understands 	and 	agrees 	that 	[the 	License
Agreement] in no way creates a lease agreement,”
• 	“[Church] expressly acknowledges, admits and agrees
[that] . . . [a]bsent the [License Agreement], [it] has no
interest in or right to enter or use [the Premises],” and

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• 	“[The License Agreement] in no way alters or amends any
obligation owed by [Church] to [Park Avenue] under the
previously existing and now terminated lease agreement.”
In further support of its ruling, the court stated that it was
“undisputed that the parties corresponded in writing about a
resolution regarding relinquishing possession of the [Premises]
and reviving the [L]ease with new and additional terms.” In short,
the court concluded that “the Return of Possession and the
subsequent [License Agreement] constitute[d] a surrender and
acceptance under the Utah Supreme Court’s decision in Reid v.
Mutual of Omaha Ins. Co., 776 P.2d 896 (Utah 1989).”
¶26 	Second, the court ruled as a matter of law that under the
plain language of the Guaranty, Miller was “not liable for any
treble damages that [might] be awarded to [Park Avenue] against
[Church] under the Lease.” The court noted that Miller had
guaranteed to Park Avenue the payment of “losses, damages, or
liabilities of any kind or nature incurred by [Park Avenue] as a
result of” Church’s breach. (Emphasis added.) It then reasoned
that statutory treble damages are not “‘losses, damages, or
liability’ that are ‘incurred’” but are, rather, “statutory damage[s]
awarded against a holdover tenant to provide an economic
incentive 	for 	the 	tenant 	to 	leave 	the 	property 	and 	return
possession 	to 	the 	landlord.” 	(Emphasis 	added.) 	The 	court
concluded that because the statutory treble damages that could
have been assessed against Church were not damages incurred by
Park Avenue, those damages were “not properly subject to the
Guaranty.”
¶27 	Finally, the court determined that Park Avenue had not
“provide[d] a sufficient computation” in its damages disclosure
“because 	it 	provided 	a 	bare 	number 	($2,043,978.26) 	while
referring to multiple documents and damages theories” and
leaving many questions unanswered. Specifically, the court said,

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[Park Avenue] did not explain whether it was
calculating damages under subsections 14.03(a), (b),
(c), or (d) of the Lease or a combination of those
subsections, and, if it was, [Park Avenue] did not
explain 	what 	figures 	it 	was 	deriving 	from 	its
application of those subsections. [Park Avenue] did
not state the number of days of unlawful detainer,
confirm the total amount of treble damages claimed,
or 	state 	whether 	it 	was 	applying 	the 	trebling
provision of the unlawful detainer statutes to any
amounts in addition to daily rent. [Park Avenue]
did not identify the missed payments under the
Forbearance Agreement and the amount of those
missed payments. [Park Avenue] did not explain
how it was applying payments that may have been
made by [Church] or payments that may have been
received from third parties, such as other tenants.
[Park Avenue] did not explain how any amounts
due and owing under the Forbearance Agreement
affected, overlapped, or superseded any amounts
owing under the Lease for the months of April, May,
June, July, and August of 2017. This failure to
provide 	information 	regarding 	these 	issues
constitutes a failure to provide a computation of
damages.
The court then determined that the deficient disclosure was not
harmless or the result of good cause and, thus, that Park Avenue
was generally barred from putting on evidence of its damages.
Nevertheless, the court ruled that Park Avenue was “not barred
from 	presenting 	evidence 	supporting 	its 	claimed 	breach 	of
contract damages for unpaid rent for April, May, June, July, and
August of 2017.” As to this ruling, the court explained, “[I]t was
readily apparent that [Park Avenue] was claiming unpaid rent for
those months, and these amounts are readily ascertainable from

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the 	face 	of 	the 	Lease, 	which 	was 	referenced 	in 	the 	initial
disclosures.”
¶28 	Later, Miller filed another summary judgment motion. In
this motion, he noted that in the court’s prior summary judgment
order, the court had “held that the Lease was rescinded and
terminated under the doctrine of surrender and acceptance and,
therefore, . . . that ‘to the extent [Park Avenue sought] damages
from [Miller] for rent payments after August 12, 2017, . . . the claim
[was] dismissed with prejudice.’” He further observed that the
court had “ruled that ‘[Park Avenue was] barred from presenting
any evidence of damages except for evidence of unpaid rent for
the months of April, May, June, July, and August of 2017.’” Based
on those rulings, Miller asserted that to establish “any liability
against [Miller] based on the Guaranty,” Park Avenue had to
“prove that Church owe[d] rent under the Lease for those five
months,” and he argued that Park Avenue could not “meet this
burden because Church actually paid [Park Avenue] nearly
$45,000 more than” the amount Church owed for those five
months. According to Miller, the undisputed facts showed that
while Church owed Park Avenue $150,000 in unpaid rent for the
five months from April to August 2017, Church had made “six
payments to [Park Avenue] totaling $194,605.48,” namely,
1. 	$60,000 on or about September 21, 2016, as a
security deposit;
2. 	$30,000 on June 9, 2017;
3. 	$31,733.48 on June 12, 2017;
4. 	$33,267.48 on July 13, 2017;
5. 	$4,604.52 on July 14, 2017; and
6. 	$35,000 on or about August 14, 2017.

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Miller contended that because Church had paid Park Avenue
more than the amount of damages Park Avenue had admissible
evidence to support, the court should enter summary judgment
on the “entirety” of Park Avenue’s claim against him and award
him his attorney fees as the prevailing party.
¶29 	The court agreed with Miller. It stated that “the undisputed
evidentiary record” showed that Park Avenue could “only show
admissible evidence of $150,000 owing under the Lease and/or
[the] Forbearance Agreement” and that Church had “paid over
$155,000” to Park Avenue. The court therefore determined that
there was no genuine dispute that Park Avenue could not “show
any triggering of the Guaranty.” Thus, the court dismissed Park
Avenue’s claim against Miller and awarded him his reasonable
attorney fees and costs.
ISSUES AND STANDARDS OF REVIEW
¶30 	Park Avenue now appeals, challenging each of the district
court’s summary judgment rulings described above. “Appellate
courts review a district court’s legal conclusions and ultimate
grant or denial of summary judgment for correctness, viewing the
facts and all reasonable inferences drawn therefrom in the light
most favorable to the nonmoving party.” Fleming v. Dullanty, 2025
UT App 128, ¶ 28, 579 P.3d 365 (cleaned up). To the extent that the
court’s summary judgment rulings rely on the interpretation of a
contract, “the determination of whether a contract is facially
ambiguous is a question of law, which we review for correctness,”
KB Squared LLC v. Memorial Bldg. LLC, 2019 UT App 61, ¶ 17, 442
P.3d 1168 (cleaned up), and the “interpretation of unambiguous
contracts is also 	a 	question 	of 	law,” 	which 	we 	review for
correctness, Ward v. IHC Health Services, Inc., 2007 UT App 362,
¶ 7, 173 P.3d 186. 	To the extent that the court’s summary
judgment rulings relied on its imposition of discovery sanctions
under rule 26 of the Utah Rules of Civil Procedure, we review for
abuse of discretion a district court’s determination regarding the

628 Park Avenue, LLC v. Miller
20240378-CA 	17 	2026 UT App 113
sufficiency of a disclosure, see Bad Ass Coffee Co. of Hawaii Inc. v.
Royal Aloha Int’l LLC, 2020 UT App 122, ¶ 37, 473 P.3d 624, and we
also “review a district court’s ruling on sanctions under rule 26 of
the Utah Rules of Civil Procedure using an abuse of discretion
standard.” Cougar Canyon Loan LLC v. Walker, 2020 UT App 176,
¶ 14, 482 P.3d 227.
ANALYSIS
I. Surrender and Acceptance
¶31 	Park Avenue contends that the district court erred by
concluding as a matter of law that Church surrendered the
Premises and Park Avenue accepted the surrender.
¶32 	Surrender and acceptance is a common law doctrine. See
Reid v. Mutual of Omaha Ins. Co., 776 P.2d 896, 900 (Utah 1989).
“Under that doctrine, when a tenant surrenders the premises to a
landlord before a lease term expires and the landlord accepts that
surrender, the tenant is no longer in privity of estate with the
landlord and therefore has no obligation to pay any rents accruing
after the date of the acceptance.” Id. “Phrased in contract law
parlance, 	the 	lease 	is 	treated 	as 	having 	been 	rescinded 	or
terminated by mutual agreement.” Id. “[T]he critical issue in
applying the doctrine . . . is determining whether the landlord
intended to accept the surrender. This intention may be express
or implied.” Id. It may be implied if it is “manifested by [the
parties’] acts.” Brookside Mobile Home Park, Ltd. v. Peebles, 2000 UT
App 314, ¶ 20, 14 P.3d 105 (cleaned up), aff’d, 2002 UT 48, 48 P.3d
968.
¶33 	“The party who relies on [surrender and acceptance] has
the burden of proving it,” and “the proof must be clear where the
surrender is to be inferred from circumstances inconsistent with
the intention to perform.” Id. ¶ 21 (cleaned up). “[A]cceptance of
the keys and attempting to re-let the premises are not alone

628 Park Avenue, LLC v. Miller
20240378-CA 	18 	2026 UT App 113
sufficient to constitute a surrender and acceptance,” but “[s]uch
acts may of course be considered with other circumstances.” John
C. Cutler Ass’n v. De Jay Stores, 279 P.2d 700, 702 (Utah 1955). Given
the 	“fact-intensive 	nature” 	of 	the 	inquiry, 	the 	“question 	of
whether the acts and circumstances constituted a surrender and
acceptance is one for the fact finder.” Brookside, 2000 UT App 314,
¶¶ 21, 24 (cleaned up). And because this is an issue of fact,
“summary judgment should be granted with great caution.”
iDrive Logistics LLC v. IntegraCore LLC, 2018 UT App 40, ¶ 64, 424
P.3d 970 (cleaned up). Indeed, summary judgment should not be
granted on a factual issue unless the evidence “is so one-sided that
a reasonable factfinder could reach but one conclusion.” Ocean 18
LLC v. Overage Refund Specialists LLC (In re Excess Proceeds from
Foreclosure of 1107 Snowberry St.), 2020 UT App 54, ¶ 29, 474 P.3d
481.
¶34 	Here, the district court determined that the Return of
Possession together with several specific provisions of the License
Agreement and correspondence between the parties collectively
supported 	the 	conclusion 	that 	as 	a 	matter 	of 	law 	Church
surrendered the Premises on August 12, 2017, and Park Avenue
accepted the surrender. And indeed, there is language in those
sources that suggests a surrender and acceptance. In the Return of
Possession, 	Church 	said 	that 	it 	was 	“COMPLETELY
RETURN[ING] 	POSSESSION 	OF 	THE 	PREMISES” 	to 	Park
Avenue. In the License Agreement, the parties repeatedly referred
to the Lease as having been “terminated” and said that the License
Agreement “in no way create[d] a lease agreement” because at
that point, Park Avenue “refuse[d] to enter a lease agreement”
with Church. Instead, the License Agreement purported to create
only 	a 	“[l]icense,” 	and 	Church 	“expressly 	acknowledge[d],
admit[ted] and agree[d]” that absent the License Agreement, it
had “no interest in or right to enter or use [the Premises].”
Moreover, in a nearly contemporaneous email, Park Avenue
referred to “reviv[ing] the [L]ease,” from which a factfinder might
infer that Park Avenue understood the Lease to have been
terminated. See Revive, Merriam-Webster, https://www.merriam-

628 Park Avenue, LLC v. Miller
20240378-CA 	19 	2026 UT App 113
webster.com/dictionary/revive 	[https://perma.cc/H7GA-JZAM]
(defining “revive” to include “restor[ing] to . . . life”).
¶35 	However, 	other 	language 	from 	these 	same 	sources
suggests that Park Avenue and Church did not intend a surrender
and acceptance. The Return of Possession stated that Park Avenue
was “not waiv[ing] any rights or remedies afforded to [Park
Avenue] 	under 	the 	Lease” 	and 	that 	Church’s 	“return 	of
possession 	[did] 	not 	relieve 	[Church] 	of 	any 	outstanding
obligations under the Lease.” The License Agreement similarly
stated that it “in no way alter[ed] or amend[ed] any obligation
owed by [Church] to [Park Avenue] under the” Lease. And Park
Avenue’s email reference to “reviv[ing] the lease” could also
support an inference that the parties viewed the Lease as not
having been terminated but only having been rendered dormant
while Church attempted to “raise funds to pay [the] money [it]
owed to [Park Avenue].” See id. (defining “revive” to include
“restor[ing] 	to 	consciousness 	. 	. 	. 	or 	healthy 	condition”).
Additionally, Park Avenue never served Church with written
notice stating that it was terminating the Lease, and its manager
declared 	that 	Park 	Avenue 	“never 	intended 	the 	Return 	of
Possession . . . or the [License Agreement] to be a surrender of the
Lease” and “never intended to accept the surrender of the Lease.”
The manager further declared that Park Avenue considered the
Lease to be merely “suspended during the licensing period.”
¶36 	Given the conflicting evidence on this issue, a reasonable
factfinder could resolve this issue in favor of either party, and
because the evidence is not “so one-sided that a reasonable
factfinder could reach but one conclusion,” Ocean 18, 2020 UT
App 54, ¶ 29, the district court erred in concluding as a matter of
law that Church surrendered the Premises and that Park Avenue
accepted that surrender.
¶37 	Miller resists this conclusion primarily by pointing to the
evidence we have identified that supports a finding in his favor.
But the fact that evidence exists to support a finding in his favor

628 Park Avenue, LLC v. Miller
20240378-CA 	20 	2026 UT App 113
does not make summary judgment appropriate where there is
also evidence to support a contrary finding. See Bridge v. Backman,
353 P.2d 909, 910 (Utah 1960) (“[U]nless there is a showing that
the disfavored parties cannot produce evidence which would
reasonably support a finding in their favor on a material or
determinative issue of fact, a summary judgment is erroneous.”).
¶38 	Miller also asserts that the declaration of Park Avenue’s
manager cannot create a genuine issue of fact regarding Park
Avenue’s intent to accept a surrender of the Premises because the
declaration lacks “the detail necessary to create a dispute of fact.”
See generally Heslop v. Bear River Mutual Ins. Co., 2017 UT 5, ¶ 23,
390 P.3d 314 (stating that an “affidavit must set forth specific facts
showing there is a genuine issue for trial” and that the “mere
assertion that an issue of fact exists without a proper evidentiary
foundation to support that assertion is insufficient” (cleaned up)).
But because there is evidence in addition to Park Avenue’s
manager’s declaration to support a finding in Park Avenue’s
favor, this assertion is unavailing. Moreover, even if the existence
of a genuine issue of material fact depended on the manager’s
declaration, that declaration contained more than a mere assertion
regarding Park Avenue’s intent. It included sufficient information
regarding the manager’s role in communicating with Miller on
behalf of Park Avenue to provide a foundation for the manager’s
statements.
¶39 	In short, Miller’s arguments do not persuade us that
summary 	judgment 	was 	properly 	granted 	on 	the 	issue 	of
surrender 	and 	acceptance, 	and 	we 	reverse 	that 	summary
judgment ruling.
II. Miller’s Responsibility for Treble Damages
¶40 	Park Avenue also asserts that the district court erred by
concluding as a matter of law that Miller did not guarantee the
payment of treble damages that could be imposed against Church
under the unlawful detainer statute. We conclude that a genuine

628 Park Avenue, LLC v. Miller
20240378-CA 	21 	2026 UT App 113
dispute of material fact exists on this issue as well and, thus, that
the court again erred in granting summary judgment.
¶41 	Utah’s unlawful detainer statute states that in the event the
court or a jury finds there has been an unlawful detainer, “[t]he
court shall enter the judgment against the defendant for the rent
and for three times the amount of the damages.” Utah Code § 78B-
6-811(3). The district court determined that the Guaranty did not
require Miller to pay the treble damages that could have been
assessed against Church under this statute. It reasoned that Miller
was obligated to pay only for “losses, damages, or liabilities of any
kind or nature incurred by [Park Avenue] as a result of [Church’s]
breach of the Lease” and that “treble damages are not ‘losses,
damages, or liabilities’ that are ‘incurred.’” (Emphasis added.)
“Rather,” the court said, “they are a statutory damage awarded
against a holdover tenant to provide an economic incentive for the
tenant 	to 	leave 	the 	property 	and 	return 	possession 	to 	the
landlord.”
¶42 	The 	court’s 	ruling 	finds 	some 	support 	from 	a 	plain
meaning perspective. As relevant here, “incur” may be defined as
“[t]o suffer.” Incur, Black’s Law Dictionary (12th ed. 2024). And
plainly, 	Park 	Avenue 	did 	not 	suffer 	three 	times 	its 	actual
damages. Hence, the court’s interpretation of the Guaranty is a
reasonable one.
¶43 	However, the Lease employs a usage of “incurred” that is
potentially different from its ordinary meaning. Specifically, the
Lease says that the damages Park Avenue may recover include
those 	“incurred 	by 	reason 	of 	[Church’s] 	breach 	or 	default,
including all of the following: . . . such . . . amounts . . . as may be
permitted from time to time by the laws of the State [of Utah].”
Under this usage, treble damages permitted by Utah’s unlawful
detainer statute qualify as damages “incurred” by Park Avenue
“by reason of [Church’s] breach.” And because the Guaranty was
executed in conjunction with the Lease and was included as an
attachment to the Lease, it would be reasonable to interpret the

628 Park Avenue, LLC v. Miller
20240378-CA 	22 	2026 UT App 113
Guaranty’s use of “incurred” in harmony with the Lease’s use of
“incurred.” See Winegar v. Froerer Corp., 813 P.2d 104, 109 (Utah
1991) 	(holding 	that 	when 	two 	agreements 	are 	“executed
substantially contemporaneously and are clearly interrelated, we
must construe them as a whole and harmonize their meanings if
possible” (cleaned up)). Not surprisingly, Park Avenue urges this
interpretation.
¶44 	Having determined that the term “incurred” as used in the
Guaranty 	is 	subject 	to 	two 	reasonable 	interpretations, 	we
conclude that the Guaranty is ambiguous as to whether it
obligates Miller to pay Park Avenue for treble damages that could
have been assessed against Church. See Brady v. Park, 2019 UT 16,
¶ 54, 445 P.3d 395 (“A contractual term or provision is ambiguous
if it is capable of more than one reasonable interpretation because
of uncertain meaning of terms . . . .” (cleaned up)). And because
the Guaranty is ambiguous on this point, the district court erred
in ruling on its meaning as a matter of law. See id. ¶ 53 (“[W]here
a contractual term or provision is ambiguous as to what the
parties intended, the question becomes a question of fact to be
determined by the fact-finder.”). We therefore reverse the court’s
ruling granting summary judgment on this issue.
III. Park Avenue’s Disclosure of Its Damages
¶45 	Finally, 	Park 	Avenue 	argues 	that 	the 	district 	court
committed two errors related to Park Avenue’s disclosure of its
damages computation. First, it contends that the “district court
incorrectly excluded evidence of [Park Avenue’s] damages on the
theory 	that 	[Park 	Avenue’s] 	disclosure 	of 	its 	damages
computation was insufficient under rule 26” of the Utah Rules of
Civil Procedure. Second, Park Avenue asserts that the court
“compounded” its initial error by “incorrectly appl[ying] rule
26(a)(1)’s [damages] disclosure requirement not only to Park
Avenue’s damages claim against Miller, but also to bar [Park
Avenue] from showing the amounts owed by Church in response
to Miller’s arguments that the payments [Park Avenue] received

628 Park Avenue, LLC v. Miller
20240378-CA 	23 	2026 UT App 113
from Church had made it whole.” We address each of these
contentions in turn, after providing a brief overview of the
governing law.
A. 	Overview of the Governing Law
¶46 	“Rule 26 of the Utah Rules of Civil Procedure requires
litigants to make initial disclosures of certain fact witnesses,
documents, and other information.” Black Diamond Fin. LLC v. Big
Cottonwood Pine Tree Water Co., 2020 UT App 90, ¶ 20, 470 P.3d 445
(cleaned up). The required disclosures include “a computation of
any damages claimed and a copy of all discoverable documents
or evidentiary material on which such computation is based.”
Utah R. Civ. P. 26(a)(1)(C). “These required initial damages
disclosures need not, 	in every case, 	contain a to-the-penny
calculation . . . .” Butler v. Mediaport Ent. Inc., 2022 UT App 37,
¶ 20, 508 P.3d 619. “Sometimes, litigants might not know, at the
outset of the case, the precise amount of damages they intend to
seek at trial, and may need to fine-tune their damages claims
through discovery or the assistance of an expert.” Chard v. Chard,
2019 UT App 209, ¶ 41, 456 P.3d 776. “But litigants must make a
good faith attempt to compute damages to the extent it is possible
to 	do 	so 	and 	must 	in 	any 	event 	provide 	all 	discoverable
information on the subject, including materials related to the
nature and extent of the damages.” Id. (cleaned up). “At a
minimum,” the rule requires “a disclosure that damages are in
fact being claimed, the categories of any such damages, and a
description of the method by which the party intends to compute
those damages.” Butler, 2022 UT App 37, ¶ 22 (cleaned up). “[A]ny
ability on the part of [one party] to guess at potential damages
does not free [the opposing party] from its obligation to disclose
a computation of damages.” Keystone Ins. Agency v. Inside Ins.,
2019 UT 20, ¶ 20, 445 P.3d 434. If a party fails to disclose as
required, “that party may not use the undisclosed witness,
document, or material at any hearing or trial unless the failure is
harmless or the party shows good cause for the failure.” Utah R.
Civ. P. 26(d)(4).

628 Park Avenue, LLC v. Miller
20240378-CA 	24 	2026 UT App 113
B. 	Park Avenue’s Damages Disclosure
¶47 	Here, Park Avenue’s damages disclosure stated that Park
Avenue was seeking $2,043,978.26 in damages. However, despite
the fact that this number—which was delineated down to the
penny—was plainly the product of an actual computation, Park
Avenue did not disclose the computation it employed. Park
Avenue’s failure to provide the computation it used to arrive at a
specific amount of claimed damages was a violation of rule
26(a)(1)(C). The notion that parties “must make a good faith
attempt to compute damages to the extent it is possible to do so,”
Chard, 2019 UT App 209, ¶ 41 (cleaned up), would have little
meaning if parties were not required to produce their resulting
good-faith computations. While our case law allows for leniency
when a party lacks the components needed to perform its ultimate
computation, see Butler, 2022 UT App 37, ¶ 20, and while it allows
parties 	to 	“fine-tune” 	their 	damages 	claims 	as 	litigation
progresses, see Chard, 2019 UT App 209, ¶ 41, it does not allow a
party to withhold the calculation that the party actually employed
to arrive at a specific number for disclosure.
¶48 	Park Avenue contends that its disclosure was adequate
because in addition to providing a “sum certain: $2,043,978.26,” it
“explained the formula for computing this figure.” Specifically, it
asserts that the formula consists of its statements in its damages
disclosure that the $2,043,978.26 figure “‘is based on the amount
[Church] owes [Park Avenue] arising out of [Church’s] repeated
failure 	to 	pay 	rent[,]’ 	consisting 	of 	‘unpaid 	rent, 	statutory
damages for unlawful detainer, and breach of contract damages
plus interest, attorney fees, and court costs.’” Park Avenue then
suggests that it disclosed the information needed to employ that
formula when it (1) identified Section 14.03 of the Lease, the
Forbearance Agreement (including Section 4(c)), and Utah Code
section 78B-6-811(3) as the sources “pursuant to” which its
damages “amount was computed” and (2) “incorporated [the
Lease, 	the 	Guaranty, 	the 	Forbearance 	Agreement, 	and 	its
amended complaint against Church] into its initial disclosures.”

628 Park Avenue, LLC v. Miller
20240378-CA 	25 	2026 UT App 113
¶49 	But the foregoing formula and identified sources combined
do not yield a computation that readily produces $2,043,978.26 in
total damages. In fact, even on appeal, Park Avenue makes no
effort to show how its formula produced the specific figure of
$2,043,978.26. Even though some components of this figure are
plainly discernable from Park Avenue’s disclosure, see infra
¶¶ 60–64, others plainly are not. As the district court aptly noted,
Park Avenue’s disclosure—even when read to include the Lease
and 	other 	documents 	incorporated 	therein—did 	not 	“state
whether [Park Avenue] was applying the trebling provision of the
unlawful detainer statutes to any amounts in addition to daily
rent” or “explain how it was applying payments that may have
been made by [Church] or payments that may have been received
from third parties.” Nor did Park Avenue’s disclosure state, for
example, whether its total damages figure included amounts for
waste and nuisance abatement (both of which were pleaded in the
amended complaint against Church) or whether it included
interest, attorney fees, or amounts expended in efforts to relet the
Premises. For these reasons, we are not persuaded by Park
Avenue’s purported “formula” for computing a damages figure
of 	$2,043,978.26. 	We therefore 	conclude that 	Park Avenue’s
disclosure of $2,043,978.26 in damages generally did not comply
with the requirements of rule 26(a)(1)(C).
¶50 	Notwithstanding 	our 	foregoing 	conclusion, 	we 	also
determine that the principles that animated our decisions in
Williams v. Anderson, 2017 UT App 91, 400 P.3d 1071, and Bad Ass
Coffee Co. of Hawaii Inc. v. Royal Aloha International LLC, 2020 UT
App 122, 473 P.3d 624, apply here and require an additional
conclusion: namely, that four individual components of Park
Avenue’s claimed damages—the amounts that are apparent from
its initial disclosures—did satisfy rule 26(a)(1)(C) and, thus, that
Park Avenue is not barred from presenting evidence of those
particular components of its claimed damages.
¶51 	In Williams, the plaintiff alleged that he had held a 30%
ownership interest in a company of which the two individual

628 Park Avenue, LLC v. Miller
20240378-CA 	26 	2026 UT App 113
defendants had also been owners. 2017 UT App 91, ¶ 2. The
plaintiff further alleged that the other owners “unjustly cancelled
or terminated his ownership interest and thereafter sold the
company” to another entity. Id. The purchase price was $200,000,
a fact the plaintiff did not learn until sometime during discovery.
See id. ¶ 5.
¶52 	The plaintiff sued the other owners for breach of fiduciary
duty, civil conspiracy, and fraud. Id. ¶ 3. “In connection with his
claims, [the plaintiff] sought to recover 30% of the purchase price
that [the purchasing entity] paid for [the company],” “punitive
and other damages,” and a declaration “that he was a thirty
percent (30%) owner of any equity or ownership interest that [the
individual defendants] possess[ed] in [the purchasing entity].” Id.
(cleaned up). In his initial disclosures, the plaintiff stated “that he
was entitled to 30% of [the company’s] purchase price and 30% of
any equity or ownership interest that [the defendants] may have
[had] in [the purchasing entity], including punitive damages and
any money owed by [the purchasing entity].” Id. ¶ 7 (cleaned up).
The plaintiff’s initial disclosures also stated that “he was entitled
to 30% of any cash or other assets that remained at [the company]
after the asset sale and to [company] distributions from which he
was excluded.” Id. (cleaned up).
¶53 	In response to a motion in limine filed by the defendants,
the district court determined that the plaintiff had “not disclose[d]
a computation of any damages claimed for purposes of rule 26,”
and 	it 	“prevent[ed] 	him 	from 	presenting 	damages-related
evidence at trial.” Id. ¶¶ 9, 13 (cleaned up). The plaintiff petitioned
for interlocutory review of the district court’s decision, and we
granted the petition. Id. ¶ 12. Reviewing the district court’s
decision, we determined that “[h]owever vague the [plaintiff’s]
claims to other funds may have been, [his] disclosure of his claim
to 30% of [the company’s] purchase price was consistent and
straightforward.” Id. ¶ 21. And we reversed the district court’s
decision as to that component of the plaintiff’s claimed damages.
Id. ¶ 29.

628 Park Avenue, LLC v. Miller
20240378-CA 	27 	2026 UT App 113
¶54 	In support of our decision, we noted that although the
plaintiff did not disclose the price the purchasing entity paid for
the company, his “disclosure described the precise components
he intended to factor into” that particular part of his damages
claim, id. ¶ 19, and that part of the damages claim was “readily
calculable from the information disclosed,” id. ¶ 25. Elaborating,
we explained,
[W]hile [the plaintiff] did not know the purchase
price 	was 	$200,000 	when 	he 	served 	his 	initial
disclosures, [the defendants] knew how much [the
company] had sold for and could readily calculate
this component of [the plaintiff’s] damages as 30%
of 	$200,000, 	or 	$60,000. 	Thus, 	[the 	plaintiff’s]
disclosure explaining the process for calculating his
claimed portion of [the company’s] purchase price
satisfied his obligation under rule 26(a)(1)(C) to
produce a ‘computation of any damages claimed’—
at 	least 	with 	regard 	to 	that 	component 	of 	his
damages claim.
Id. ¶ 19.
¶55 	We draw two animating principles from Williams. First, to
the extent that a party adequately discloses a component of its
damages claim, it may present evidence of that component, even
if the remainder of its damages disclosure fails to comply with
rule 26(a)(1)(C). Second, a formula rather than a specific sum may
be sufficient to meet a party’s disclosure obligation if the claimed
damages are readily calculable using the identified formula and
the other information disclosed.
¶56 	In 	Bad 	Ass 	Coffee 	Co. 	of 	Hawaii 	Inc. 	v. 	Royal 	Aloha
International LLC, 2020 UT App 122, 473 P.3d 624, a coffee
company and “an international franchise consultancy” formed a
new entity—of which they both became part owners—“for the
purpose 	of 	developing 	[the 	coffee 	company’s] 	international

628 Park Avenue, LLC v. Miller
20240378-CA 	28 	2026 UT App 113
presence.” Id. ¶¶ 1–3. The new entity’s operating agreement gave
the former president and director of the coffee company a 25%
interest in the new entity, the coffee company itself a 25% interest
in the new entity, and the consultancy a 50% interest in the new
entity. Id. ¶¶ 2–3. The operating agreement further “provided that
[the consultancy’s] initial capital contribution would be ‘its time
for the day-to-day management and the international franchise
development,’ which had a ‘fair market value of approximately
$500,000.00.’” Id. ¶ 4.
¶57 	“The parties’ relationship eventually deteriorated, and
litigation ensued.” Id. ¶ 1. That litigation included a claim by the
consultancy 	against 	the 	coffee 	company 	for 	breach 	of 	the
operating agreement. See id. ¶ 33. The consultancy alleged that as
a result of the breach, it “had lost the value of its capital
contribution.” 	Id. 	In 	its 	initial 	disclosures, 	the 	consultancy
“identified, as an element of its damages, ‘Lost capital investment
in [the new entity]: $500,000.’” Id. The coffee company moved for
summary judgment on the consultancy’s claim, “arguing that it
had failed to . . . provide ‘any calculation of damages.’” Id. The
consultancy 	“opposed 	the 	motion, 	arguing 	that 	the 	parties
contractually agreed to the value of its in-kind contribution at
$500,000, that [the consultancy] claimed this amount in its initial
disclosures, and that the operating agreement had been produced
in discovery and authenticated in depositions.” Id. (cleaned up).
The 	consultancy 	pointed 	out 	that 	the 	parties 	had 	“freely
contracted for the $500,000 figure” and that because “the value of
[the consultancy’s] services [was] stipulated to be $500,000, the
contract itself [was] adequate evidence of damages.” Id. (cleaned
up). “Accordingly, [the consultancy] contended that it was not
required to establish some kind of formal calculation for the
stipulated value of its services in the operating agreement because
[the coffee company had] already agreed to that amount.” Id.
(cleaned up). The district court agreed with the consultancy and
denied the coffee company’s motion. See id. ¶ 34.

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¶58 	On appeal, the coffee company argued that the consultancy
“failed to comply with rule 26 when it merely disclosed the
perfectly round number of $500,000 as damages and did not
supplement that disclosure.” Id. ¶ 35 (cleaned up). Like the district
court, 	we 	disagreed. 	See 	id. 	¶¶ 	36–37. 	We 	noted 	that 	the
consultancy “identified the lost capital contribution consisting of
in-kind 	services 	as 	damages 	in 	its 	[pleadings] 	and 	in 	its
initial disclosures . . . and it provided the [o]perating [a]greement
itself as a basis for damages early in the litigation.” Id. ¶ 36.
We 	further 	observed 	that 	“the 	$500,000 	damages 	figure
required no computation” because the consultancy’s “theory was
that 	the 	figure 	represented 	the 	entire 	value 	of 	its 	in-kind
contribution to the parties’ venture as agreed to by the parties in
the [o]perating [a]greement.” Id. ¶ 37. We reasoned that because
the consultancy “purported to seek that full amount as damages
for breach of the [o]perating [a]greement, no further disclosure
was needed” and, thus, that “the district court did not abuse its
discretion 	by 	concluding 	that 	[the 	consultancy’s] 	damages
disclosures were sufficient under rule 26’s damages disclosure
requirement.” Id.
¶59 	As relevant here, Bad Ass Coffee stands for the principle
that when the value of a party’s claimed damages—or, by
extension, an element of the party’s damages calculation—was
contractually agreed upon, identification and production of the
contract containing that value is sufficient to comply with rule
26(a)(1)(C), at least with regard to that element of the damages
calculation.
¶60 	Applying these principles from Williams and Bad Ass Coffee,
we 	conclude 	that 	Park 	Avenue 	adequately 	disclosed 	four
components of its claimed damages: (1) Church’s unpaid rent for
April, May, June, July, and August 2017; (2) Church’s unpaid
minimum future rent; (3) treble damages based on unpaid rent
from May 15, 2017, through June 2, 2017; and (4) the base amount
Church still owed under the Forbearance Agreement. To the
extent that on remand Park Avenue is otherwise permitted to

628 Park Avenue, LLC v. Miller
20240378-CA 	30 	2026 UT App 113
pursue these damages theories, it should be allowed to present
evidence of the amount of these claimed damages. We address in
turn 	each 	of 	these 	components 	of 	Park 	Avenue’s 	claimed
damages.
¶61 	Church’s unpaid rent for April, May, June, July, and
August 	2017: 	Although 	the 	district 	court 	ruled 	that 	Park
Avenue was generally barred from putting on evidence of its
damages, it determined that Park Avenue was not barred from
presenting evidence of its claimed damages for unpaid rent
for 	April, 	May, 	June, 	July, 	and 	August 	2017. 	To 	support
this 	ruling, 	the 	court 	explained, 	“[I]t 	was 	readily 	apparent
that [Park Avenue] was claiming unpaid rent for those months,
and these amounts are readily ascertainable from the face of the
Lease, which was referenced in the initial disclosures.” The
district 	court’s 	reasoning 	fully 	accords 	with 	the 	principles
identified above, and Miller did not appeal the court’s decision on
this point. Accordingly, on remand, Park Avenue should again be
allowed to present evidence of this component of its claimed
damages.
¶62 	Church’s unpaid minimum future rent: Just as it was
readily apparent that Park Avenue was claiming unpaid rent for
April, May, June, July, and August 2017, it was also readily
apparent 	that 	Park 	Avenue 	was 	seeking 	future 	rent. 	The
minimum rent amount ($360,000 annually, or $30,000 monthly)
and the term of the Lease were agreed upon in the Lease, which
Park Avenue identified and produced as part of its damages
disclosure. The formula for calculating future rent is plain—the
number of months remaining in the Lease term for which Church
did not pay rent times the minimum monthly rent amount—and
Park Avenue produced the information needed to employ this
formula. Thus, the total amount of unpaid minimum future rent
is readily calculable, and the district court exceeded its discretion
by not ruling that Park Avenue complied with rule 26(a)(1)(C) as
to this component of its claimed damages. On remand, if the
district 	court 	determines 	that 	there 	was 	no 	surrender 	and

628 Park Avenue, LLC v. Miller
20240378-CA 	31 	2026 UT App 113
acceptance or that Park Avenue’s right to unpaid rent through the
end of the Lease period accrued prior to any surrender and
acceptance,2 Park Avenue should be permitted to put on evidence
of the amount of its claimed damages for future rent.
¶63 	Treble damages based on unpaid rent from May 15, 2017,
through 	June 	2, 	2017: 	Park 	Avenue 	stated 	in 	its 	damages
disclosure that it was seeking “statutory damages for unlawful
detainer” and that its damages amount “was computed pursuant
to” 	Utah 	Code 	section 	78B-6-811(3), 	the 	unlawful 	detainer
statute’s treble damages provision. Park Avenue also identified
the 	particular 	provision 	of 	the 	Lease—Section 	14.03—under
which it and Church had agreed that damages for Church’s
default would include “amounts . . . permitted from time to time
by the laws of the State [of Utah].” Further, Park Avenue
identified and produced its amended complaint against Church,
which 	specifically 	alleged 	that 	Park 	Avenue 	sought 	“treble
damages in accordance with [Utah Code section] 78B-6-811 at the
rate of $3,000 for each day [Church] remained in unlawful
detainer 	prior 	to 	executing 	the 	Forbearance 	Agreement,
beginning on May 15, 2017[,] until June 2, 2017, and for each day
[Church] remain[ed] in unlawful detainer, beginning on July 13,
2017.” With this information, Park Avenue’s claimed 	treble
damages based on unpaid rent for the period Church was in
unlawful detainer from May 15, 2017, through June 2, 2017, were
2. Park Avenue argued in the district court and asserts again on
appeal that even if it accepted a surrender of the Premises in
August 2017, “the entire balance of the Lease was already due”
based on the provision in the Lease saying that upon Church’s
default, Park Avenue would “immediately” have the right to
recover unpaid rent through “the balance of the Lease [t]erm.” We
have elected not to address this argument in the first instance, but
Park Avenue may raise it again on remand and obtain a ruling
from the district court.

628 Park Avenue, LLC v. Miller
20240378-CA 	32 	2026 UT App 113
readily calculable.3 Therefore, the district court exceeded its
discretion by not ruling that Park Avenue complied with rule
26(a)(1)(C) with respect to this component of its claimed damages.
If on remand the district court determines that the Guaranty
obligated Miller to pay for treble damages that could have been
assessed against Church, Park Avenue should be allowed to
present evidence of the amount of such treble damages as are
based on unpaid rent from May 15, 2017, through June 2, 2017.
¶64 	The 	base 	amount 	Church 	still 	owed 	under 	the
Forbearance Agreement: Park Avenue made clear in its damages
disclosure that it sought damages “pursuant to the [F]orbearance
[A]greement.” It identified and produced both the Forbearance
Agreement and its amended complaint against Church, the latter
of which alleged that $73,354.91 was due under the Forbearance
Agreement as of July 3, 2017; that on July 13, 2017, Church made
a payment of $33,267.48; that on July 14, 2017, Church made a
payment of $4,604.52; and, thus, that “$35,482.91 remain[ed] due
and owing” under the Forbearance Agreement. In short, Park
Avenue provided a complete and detailed computation—and,
accordingly, an adequate disclosure—of this component of its
damages claim, and the district court exceeded its discretion by
ruling otherwise. On remand, if the court determines that the
Guaranty obligates Miller to pay for amounts due to Park Avenue
under the Forbearance Agreement,4 Park Avenue should be
3. Any claimed treble rent damages for the period beginning July
13, 	2017, 	were 	not 	readily 	calculable 	with 	the 	information
provided since no end date for that period was provided.
4. In Miller’s first summary judgment motion, along with the
requested rulings already identified, Miller moved for a ruling
that as a matter of law he was not liable for amounts Church owed
under the Forbearance Agreement. The court denied that portion
of Miller’s motion, concluding that on this point there remained a
genuine issue of material fact. Because the case did not proceed to
trial, this issue has not yet been decided.

628 Park Avenue, LLC v. Miller
20240378-CA 	33 	2026 UT App 113
allowed to present evidence of the base amount Park Avenue still
owed under that agreement.
¶65 	In sum, we reverse the district court’s decision to the extent
that it barred Park Avenue from presenting evidence of its
claimed damages for unpaid minimum future rent, treble unpaid
rent from May 15, 2017, through June 2, 2017, and the base amount
Church still owed under the Forbearance Agreement.
C. 	The Impact of Park Avenue’s Disclosure Deficiency on Its
Ability to Present Evidence of Other Amounts Owed by
Church
¶66 	Lastly, 	Park 	Avenue 	asserts 	that 	the 	district 	court
“incorrectly 	applied 	rule 	26(a)(1)’s 	[damages] 	disclosure
requirement not only to Park Avenue’s damages claim against
Miller, but also to bar Park Avenue from showing the amounts
owed by Church in response to Miller’s arguments that the
payments Park Avenue received from Church had made it
whole.” Park Avenue appears to concede that under its complaint
against Miller, the amounts Miller owed in addition to unpaid
rent for April, May, June, July, and August 2017 constituted
additional damages regarding which Park Avenue was required
to provide an adequate disclosure. But it argues that after the
court ruled that Park Avenue could not seek damages in excess of
the unpaid rent for those five months of 2017, it was not claiming
the other amounts owed by Church as damages and, thus, that it
no 	longer 	had 	an 	obligation 	to 	provide 	a 	rule 	26(a)(1)(C)
disclosure as to those amounts. We conclude, however, that
because Park Avenue was claiming those amounts as damages
when its initial disclosures were due and through much or all of
the discovery period, the district court did not abuse its discretion
by determining that the other amounts Park Avenue alleged
Church owed were subject to the damages disclosure requirement
and that failure to meet that requirement was sanctionable.

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20240378-CA 	34 	2026 UT App 113
¶67 	Notwithstanding this conclusion, our other rulings change
the complexion of this issue on remand. In our other rulings, we
have determined that Park Avenue may present evidence of other
amounts allegedly owed by Church. Accordingly, on remand,
Park Avenue should be permitted to show that it exercised its
“sole and absolute discretion” under the Lease to apply payments
made by Church while it was in default to other “outstanding
arrearages owed by” Church, so long as those other outstanding
arrearages are proved by evidence that is admissible under our
opinion here.
CONCLUSION
¶68 	There remains a genuine dispute of material fact regarding
whether Church surrendered the Premises and Park Avenue
accepted a surrender. We therefore reverse the district court’s
grant of summary judgment on this issue. There also remains a
genuine dispute of material fact as to whether the Guaranty
obligates Miller to pay Park Avenue for treble damages that could
have been assessed against Church. Accordingly, we reverse the
court’s grant of summary judgment on this issue as well.
¶69 	As to Park Avenue’s damages disclosure, we affirm the
court’s determination that Park Avenue’s overall disclosure was
inadequate. 	But 	we 	conclude 	that 	Park 	Avenue 	adequately
disclosed the four specific components of its claimed damages
identified herein and that the district court exceeded its discretion
to the extent that it determined otherwise. We therefore reverse in
part the district court’s summary judgment ruling related to Park
Avenue’s damages disclosure. On remand, if the court determines
that Park Avenue’s theories for pursuing these components of its
claimed damages are otherwise viable, Park Avenue should be
allowed to present evidence of the amount of these damages.
¶70 	Finally, we affirm the district court’s determination against
the backdrop of its other rulings that Park Avenue’s failure at the

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20240378-CA 	35 	2026 UT App 113
time of disclosure to provide an adequate computation of certain
of its claimed damages that were based on additional amounts
owed by Church was sanctionable even after Park Avenue could
no longer claim those amounts directly as damages. But because
our 	other 	rulings 	alter 	the 	backdrop 	against 	which 	that
determination 	was made, 	we 	ultimately 	reverse the 	district
court’s final summary judgment ruling and dismissal of Park
Avenue’s action. On remand Park Avenue should be allowed to
show that it exercised its discretion under the Lease to apply
payments made by Church while it was in default “to any
outstanding arrearages owed by” Church, so long as those
outstanding arrearages are proved by admissible evidence.
¶71 	In short, we affirm in part, reverse in part, and remand this
case for further proceedings consistent with this opinion.5
5. Relying on the principle that this court ordinarily “award[s]
appellate attorney fees and costs when a party was awarded fees
and costs below and then prevails on appeal,” Cougar Canyon
Loan, LLC v. Cyprus Fund, LLC, 2019 UT App 47, ¶ 15 n.11, 440 P.3d
884 (cleaned up), Miller asks for an award of his appellate
attorney fees and costs. Based on the district court’s rulings, Miller
certainly prevailed there. “But we have determined that the
district court’s ruling[s] [were] in several respects erroneous, and
[we] therefore deem it necessary to vacate that court’s ‘prevailing
party’ determination as well as its award of attorney fees to
[Miller].” Vanderwood v. Woodward, 2019 UT App 140, ¶ 49, 449
P.3d 983. “At the conclusion of the proceedings on remand, the
district court should reassess the ‘prevailing party’ issue and
award attorney fees as appropriate at that time.” Id.